Judge declares vouchers for low-income children unconstitutional

This morning, Superior Court Judge Hobgood ruled that the Opportunity Scholarship Program is unconstitutional. He claims that the program does not serve a public purpose and creates an unequal, supposedly unaccountable, system of schools.

Let’s look back. The action began in February when Judge Robert Hobgood issued an injunction that halted the state’s Opportunity Scholarship Program, a school choice initiative passed by the legislature and signed by the governor in 2013 that provides private school vouchers of up to $4,200 to eligible low-income families.

The N.C. State Education Assistance Authority, which administers the program, had received over 5,000 applications for approximately 2,400 vouchers, but Hobgood’s order put the program in a state of limbo.

John Hood was being kind when he observed that Judge Hobgood “ issued a poorly reasoned decision about the case.” John and my colleague Rick Henderson did a better job than anyone else trying to explain Judge Hobgood’s reasoning. Rick wrote,

What the judge appears to be arguing here is that because the 1971 Constitution is silent about a provision in the previous constitution that was illegal [the Pearsall Plan], then the current version of a law that is only marginally related to the provision that was illegal also must be illegal (even though he’s not ruling on the substance of the new law, I think).

The Pearsall Plan was an attempt to use vouchers to avoid integration efforts following the Brown v Board of Education decision in 1954. In 1969, Godwin v. Johnston County Board of Education declared the Pearsall Plan to be unconstitutional. The North Carolina Constitution of 1971 did not include any Pearsall-type provisions.

Hobgood argued that the non-existence of this unconstitutional provision in the 1971 state constitution meant that similar laws would be unconstitutional too. It was a case of “guilt by association,” even though the Opportunity Scholarship Program has almost nothing in common with the Pearsall Plan.

Although the N.C. Court of Appeals subsequently refused to lift Judge Hobgood’s order, the state Supreme Court eventually did. In response, Institute for Justice attorney Renee Flaherty commented, “The N.C. Supreme Court has sent the Court of Appeals a strong and unmistakable signal: This program should be allowed to go on.”

Before today, the question was whether Judge Hobgood received the signal as well? He subsequently denied a motion filed by voucher opponents to halt (again) distribution of approximately 2,400 vouchers for the coming school year. But he did so out of deference to his judicial superiors and not necessarily the merits of the defendants’ arguments.

The case went to trial and Judge Hobgood heard arguments on Tuesday. He issued his decision this morning.